Gowling WLG plays instrumental role in landmark SCC civil liberties decision

17 October 2019

Gowling WLG played an key role in a recent precedent-setting Supreme Court of Canada (SCC) decision, which served to clarify the scope of police powers in Canada.

On October 4, 2019, the SCC released its decision in Fleming v Ontario, unanimously finding in favour of the Appellant and the firm’s client. Writing for the Court, Justice Suzanne Côté stressed the importance of the ruling:

The case is about common law police powers of arrest. In arresting Mr. Fleming (the Appellant), the Respondent Attorney-General of Ontario and police officers argued that they had made use of an "ancillary" common law police power authorizing the arrest of an individual who was acting lawfully in order to prevent an apprehended breach of the peace. This purported police power has been used to justify arrests in circumstances of protest, including mass arrests during the 2010 G20 protests in Toronto. However, the question of whether such a power exists and its scope had not previously come before the Supreme Court. Accordingly, this case had significant implications for the rule of law in Canada.

The Court accepted the Appellant's argument that recognizing such a common law power of arrest would substantially interfere with the liberty of law-abiding individuals and would not be reasonably necessary for the fulfilment of police duties. Further, as the Court could not conceive any circumstance in which the arrest of someone who is acting lawfully in order to prevent a breach of the peace would be reasonably justified, the Court concluded that "no such power exists at common law.”

“This has been a long, lonely fight, in which [Fleming] faced all the resources of the government,” said Gowling WLG partner Michael Bordin, speaking to the Globe & Mail. “He has been waiting for this vindication since his arrest on May 24, 2009. More than anything else, he is relieved. A burden has been lifted from his shoulders, a burden that he has often felt he was carrying alone, for all law-abiding Canadians.”

Bordin, along with Jordan Diacur, appeared as counsel for the Appellant. In addition, D. Lynne Watt of the firm’s Supreme Court Practice Group acted as the Appellant’s Ottawa Agent and Matthew Estabrooks, another member of the practice group, acted as Ottawa Agent for the Canadian Constitution Foundation, an Intervener in these proceedings.